Background
JTR, an involuntary patient diagnosed with treatment-resistant schizophrenia, was receiving care at Lismore Base Hospital. His mother and designated carer, KLH, opposed the administration of electroconvulsive therapy without his consent. Two differently constituted panels of the Mental Health Review Tribunal authorized up to 12 ECT treatments after finding that JTR could not give informed consent and that ECT was reasonable and proper and necessary or desirable for his safety or welfare.
The Supreme Court dismissed KLH’s appeal from the second Tribunal determination. On 17 July 2026, the Court of Appeal granted leave to appeal but dismissed the appeal and lifted the stay that had prevented ECT. KLH then sought a further stay pending a proposed application for special leave to appeal to the High Court, relying partly on a recently adopted medication plan and asserting that ECT would deprive the proposed appeal of practical utility.
The Court’s Holding
Kirk JA refused the stay. A stay pending a special-leave application required exceptional circumstances, assessed by reference to matters including the prospects of obtaining special leave, the balance of convenience, and whether refusing relief would render the proposed application nugatory. KLH had not identified specific proposed grounds beyond broad possible arguments concerning statutory construction, alternative treatments, proportionality, liberty, and autonomy.
The Court considered the prospects of special leave low or insubstantial. The earlier appellate decision was unanimous; the principal dispute involved a fact-specific evaluation under s 96(3)(b)(ii) of the Mental Health Act 2007 (NSW); and two Tribunal panels, a Supreme Court judge, and three appellate judges had reached the same conclusion, consistently with the views of four psychiatrists and without contrary medical evidence.
Although administering ECT would likely render the proposed special-leave application nugatory because completed treatment could not be undone, that consideration was not decisive. The evidence showed ongoing severe distress, drug-resistant psychosis, escalating risk and problematic behavior, while the new medication regime was neither shown to be effective enough to displace ECT nor described by Dr Lugg as preferable to it. Given the delay already incurred and the likelihood that special-leave proceedings would take weeks or months, the balance of convenience weighed overwhelmingly against a stay.
Key Takeaways
- A stay pending an application for special leave to the High Court requires exceptional circumstances; loss of the proposed appeal’s practical utility is significant but not sufficient by itself.
- Unanimous conclusions across multiple expert tribunals and courts, supported by treating and reviewing psychiatrists and unopposed by contrary expert evidence, substantially weakened the prospects of special leave.
- Lifting the restraint did not require doctors to administer ECT immediately or continue it in all circumstances; those treatment decisions remained with JTR’s treating clinicians.
Why It Matters
The decision illustrates the demanding standard for preserving interim restraints after an appellate judgment, particularly where no special-leave application or specific grounds have yet been formulated. Even an irreversible consequence may not justify a stay when prospects of special leave are insubstantial and delay would prolong serious harm.
In mental-health treatment litigation, courts may give substantial weight to the statutory decision-making framework, consistent findings by specialist tribunals and reviewing courts, and current clinical evidence concerning the patient’s suffering and risk. Evidence of an interim medication strategy will not necessarily undermine an ECT authorization unless it demonstrates a materially effective or preferable alternative.